EU thumbs nose at US with software patent proposals

High Hurdles

The European Commission has released proposals for updating regulations regarding software patents that seem set to infuriate US software vendors.

The proposals from the European Union's policy body, which are designed to harmonize rules across member states, would set a standard that vendors will have to clear before they can secure a patent that is arguably much higher than that in the US.

Companies wishing to secure a patent on their software would be required to demonstrate their "invention" was more than just a "program as such" but actually made a "technical contribution to the state of the art".

Any claimed invention that was concerned solely with the nature of data or the way in which a particular application operated on data would not be liable for a patent under the proposals. The Commission's proposals also nix the possibility of computerizing a method or technique that was already known or the computer implementation of a business of similar method.

The proposal recognizes that this is a different approach to that taken in the US, where a patentable invention "must simply be within the technological arts" and "no specific technological contribution is needed." The Commission notes that the US approach has meant that "restrictions on patenting of business methods (apart from requirements of novelty and inventive step) are negligible."

While the proposals potentially offer a more rigorous regime for granting patents on software, they would not mean software would be open to piracy.

Software programs would still be protected under copyright law and the laws of confidentiality where appropriate, the Commission said.

Yesterday's proposals would still have to negotiate the European Parliament and the Council of Ministers before they can become law. No doubt the US business community would lobby hard to ensure that at the very least, the EU's patent regime was no more rigorous than the US'.

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